Bruns v. William M.

• Decision Date: 28 February 2012
• Docket Number: No. 41062-1-II,41062-1-II
• Parties: NORM and JANET BRUNS, husband and wife, Appellants/Cross Respondents, v. THE WILLIAM M. AND WILHELMA COFER LIVING TRUST, Respondent/Cross Appellant.
• Court: Washington Court of Appeals

NORM and JANET BRUNS, husband and wife, Appellants/Cross Respondents, v. THE WILLIAM M. AND WILHELMA COFER LIVING TRUST, Respondent/Cross Appellant.

No. 41062-1-II

COURT OF APPEALS OF THE STATE OF WASHINGTON DIVISION II

Date: February 28, 2012

UNPUBLISHED OPINION

Van Deren, J. — The Kitsap County Superior Court entered a partial summary judgment order in favor of Norm and Janet Bruns, finding that improvements to neighboring property owned by the William and Wilhelma Cofer Living Trust violated restrictive covenants. The trial court later held a bench trial on the remaining issues of remedies, affirmative defenses, and counterclaims. Following the bench trial, the trial court entered an injunction against the Cofers that allowed them to elect one of two remedies to bring their property into compliance with the neighborhood restrictive covenants. The Brunses appeal, asserting that the trial court erred by: (1) entering an injunction that did not permanently remedy the Cofers' violations of the restrictive covenants; (2) denying the Brunses' request for monetary damages; and (3) denying their request for sanctions against the Cofers. The Cofers cross-appeal, asserting that the trial court erred by: (1) granting partial summary judgment in favor of the Brunses; (2) denying the Cofers' affirmativedefenses; and (3) denying their request for sanctions against the Brunses. We affirm.

FACTS

William and Wilhelma Cofer live next door to Norm and Janet Bruns in Bainbridge Landing, a 12-lot residential subdivision in Bainbridge Island, Washington. The Cofers are trustees of the William M. and Wilhelma Cofer Living Trust, which purchased a home on Lot 11 in Bainbridge Landing in March 2003. In December 2003, the Cofers, through their living trust, purchased Lot 10 in Bainbridge Landing, which was undeveloped property neighboring the Brunses' home on Lot 9. The Cofers planned to build a residence on Lot 10 that included an accessory dwelling unit (ADU), "as the term is defined by the Bainbridge Island Municipal Code," above their detached garage. Clerk's Papers (CP) at 14.

John and Alice Tawresey developed Bainbridge Landing in 1979 and recorded restrictive covenants applicable to all subdivision lots. The Bainbridge Landing restrictive covenants state in part:

1. No lot shall be used except for residential purposes. No building shall be erected or permitted on any lot other than one detached single family dwelling and private garage for not more than three cars.

2. No building shall be erected, placed or altered on any lot until the construction

plans and specifications and a plan showing the location of the structure have been approved by the [a]rchitectural [c]ontrol [c]ommittee [ACC]. The [ACC], in making a decision, shall consider: (1) the quality of the architectural design; (2) harmony of materials with existing structures and/or surroundings; (3) conformity with lot topography; (4) removal of existing trees and vegetation.

3. No dwelling shall be constructed with a ground floor area of the main structure, exclusive of one-story open porches and garages of less than 1000 square feet. No prefabricated, modular or premanufactured homes shall be permitted on any lot. No trailers or mobile homes shall be permitted on any lot.

7. No structures of a temporary character, trailer, basement, tent, shack, garage, barn or other outbuilding, shall be used on any lot at any time as a residence, either temporarily or permanently.. . . .

16. The [ACC]'s approval or disapproval as required in these covenants shall be in writing. In the event the committee or its designated representative fails to approve or disprove within 30 days after plans and specifications have been submitted to it, or in any event if no suit to enjoin the construction has been commenced prior to the completion thereof, approval will not be required and the related covenants shall be deemed to have been fully complied with.

17. These covenants are to run with the land and shall be binding on all parties and all persons claiming under them for a period of 30 years from the date these covenants are recorded, after which time said covenants shall automatically be extended for successive periods of 10 years unless an instrument signed by a majority of then owners of the lots has been recorded, agreeing to change said covenants in whole or in part.

18. Enforcement shall be by proceedings at law or in equity against any person or persons violating or attempting to violate any covenant either to restrain violations or to recover damages.

19. Invalidation of any one of these covenants by judgment or court order shall in no way affect any of the other provisions which shall remain in full force and effect.

Ex. 2.

Pursuant to Paragraph 2 of the restrictive covenants, the Cofers submitted their building plans to the ACC for approval before beginning construction on their new home. On April 11, 2005, the ACC approved the Cofers' building plans, indicating that the plans complied with all of the subdivision's guidelines. The building approval letter requested that the Cofers "submit [their] choice of roofing material (color and type) and [their] exterior paint color to [the ACC] for approval prior to applying it." CP at 363. In December 2005, The Cofers submitted their choice of roofing material and paint color to the ACC.

Before beginning construction of their new residence, the Cofers reviewed the Bainbridge Island Municipal Code and discussed the zoning ordinances with city employees. Former Bainbridge Island ordinance 92-08, section 18.06.010 (1992), in effect at the time, allowed for an ADU that could be attached or detached from the main dwelling but the ordinance required thatan ADU not exceed 800 square feet. Although the zoning ordinances allowed for the construction of an ADU, the Cofers concede that ordinances do not abrogate restrictive covenants.

On July 19, 2005, the city of Bainbridge Island issued a building permit to the Cofers. On July 30, the Cofers notified the other residents of Bainbridge Landing that they would begin constructing their new home, but they did not specify that they planned to build an ADU above their detached garage. The Cofers applied for a second address for the ADU on May 2, 2006. On May 26, 2006, the Cofers sold their home on Lot 11. After hearing about the ADU, Janet Bruns went to the Bainbridge Island city hall to review the Cofers' construction file and to discuss the ADU with city staff.¹

The Brunses served a summons and complaint on the Cofers on July 7, 2006, and, on July 18, 2006, filed their complaint in the Kitsap County Superior Court. The Brunses' complaint alleged that the Cofers' ADU violated the Bainbridge Landing restrictive covenants. The Brunses sought to enjoin construction of the ADU and requested money damages. The Brunses later filed an amended complaint to add an allegation that the Cofers violated paragraph 2 of the restrictive covenants by failing to submit their roofing materials and exterior colors to the ACC for approval. The Cofers moved into their new residence on July 26, 2006.

After unsuccessful settlement negotiations, the Cofers moved for summary judgment on May 25, 2007. In their opposition to the Cofers' summary judgment motion, the Brunses withdrew their complaint regarding the Cofers' failure to submit their choice of roofing materialsand exterior color to the ACC, indicating that they had discovered that the Cofers did comply with this covenant provision. The trial court denied the Cofers' summary judgment motion.

The Cofers filed their answer to the Brunses complaint on June 26, 2007. The Cofers raised numerous affirmative defenses and asserted counterclaims against the Brunses, which counterclaims included allegations of tortious interference with business expectancy and violation of the Bainbridge Landing restrictive covenants by the Brunses. The Cofers also requested sanctions under CR 11 and RCW 4.84.185 based on the Brunses' claim that the Cofers violated the restrictive covenants by failing to submit their choice of roofing materials and exterior paint, which claim the Brunses had withdrawn on May 25, 2007.

The parties then filed cross-motions for partial summary judgment. The trial court granted partial summary judgment in favor of the Brunses, finding that the Cofers' garage ADU violated the Bainbridge Landing restrictive covenants. Its order stated:

1. The garage ADU on the property of defendant The William M. And Wilhelma Cofer Living Trust (the "Cofers") violates Paragraph 1 of the Protective Covenants because it exceeds the limitation of one detached single family dwelling and private garage.

2. The Cofers' garage ADU violates Paragraph 7 of the Protective Covenants because it utilizes a garage [and]/or other outbuilding as a residence.

3. The Cofers' garage ADU violates Paragraph 3 of the Protective Covenants by having a dwelling of less than 1,000 square feet.

4. Compliance with the City of Bainbridge Island's zoning rules does not allow the Cofers to avoid the limitations that the Protective Covenants otherwise impose.

5. Submitting building plans to the ACC is not enough to avoid or alleviate the restrictions otherwise imposed by the Protective Covenants.

6. Based upon the foregoing, the Brunses' Partial Summary Judgment Motion is therefore GRANTED.

CP at 194.

After the trial court ordered partial summary judgment in favor of the Brunses, the Cofersvoluntarily took action to bring their building into compliance with the Bainbridge Landing restrictive covenants. They: (1) terminated the ADU tenant's lease on January 31, 2010²; (2) removed the mailbox and address assigned to the ADU; (3) removed the stove and refrigerator from the ADU; (4) terminated the 220 electric service to the ADU by following the instructions of a certified electrical inspector; and (5) certified the decommission of the ADU with the city of Bainbridge Island. The Cofers also hired an architect to create plans to connect...